What is Vicarious Liability?

Vicarious liability is a legal doctrine by which one person is liable for the act of another person.  The most common example is an employer being liable for the act of an employee in the course of his or her employment.

When will an employer be liable for the act of an employee?

An employer will generally be liable for the acts of an employee which takes place in the course of the employee’s duties.

Will the employer be liable for the illegal act of an employee?

First impressions are that the answer to this question will be “no” because an illegal act will not normally be part of an employee’s duties.  The real answer is that it depends on the facts of the case.  A recent case in the High Court explains why this is so.

Prince Alfred College Inc v ADC [2016] HCA 37

On 5 October 2016 the High Court handed down an important decision on vicarious liability.

The Plaintiff in the case had been a boarder in a school.  He said that he had been abused by a housemaster in 1962.  Ultimately, the Plaintiff failed to obtain leave to proceed with his claim because the events took place so long ago and most of the evidence was no longer available.

In the course of its decision the High Court set out some important considerations for future cases.

There is no Absolute Rule

The High Court said “the fact that a wrongful act is a criminal offence does not preclude the possibility of vicarious liability….Conversely, the fact that employment affords an opportunity for the commission of a wrongful act is not of itself a sufficient reason to attract vicarious liability.

The Relevant Factors

The High Court outlined a number of relevant factors to consider when deciding whether vicarious liability applied to an illegal act.  These were:

  1. Did the employer assign the employee a special role?
  1. Did that special role put the employee into a particular relationship with the victim?
  1. What authority did the employee have?
  1. What trust did the employee have?
  1. What control did the employee have?
  1. Did the employee have the opportunity to achieve intimacy with the victim?

Summary

There is no doubt that the law of vicarious liability is on the move.  This has been prompted in part by cases involving sexual abuse in church and government facilities.

The outcome of future cases will depend on the evidence in each matter.  As the High Court itself stated:

The relevant approach……does not and cannot prescribe an absolute rule.  Applications of the approach must and will develop case by case.  Some Plaintiffs will win.  Some Plaintiffs will lose.  The criteria that will make those cases in which an employer is liable or where there is no liability must and will develop in accordance with ordinary common law methods.  The Court cannot and does not mark out the exact boundaries of any principle of vicarious liability in this case.

 

 

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